Lengthy probes into police shootings cause frustration

March 9, 2014

Updated Feb. 2, 2015 1:23 a.m.

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Orange County District Attorney Tony Rackauckas, left, and Assistant District Attorney Dan Wagner presented their office's findings in March 2013 that Anaheim police Officer Nicholas Bennallack was not criminally culpable in the fatal shooting of Manuel Angel Diaz. The District Attorney's Office investigates most police shootings in the county from start to finish. H. LORREN AU JR., STAFF PHOTOGRAPHER

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This front door in the 100 block of Topeka in Irvine was riddled with bullet holes in the aftermath of a 2008 police shooting. SWAT members shot a man, wounding him critically, after he pointed an assault weapon at them. BRUCE CHAMBERS, ORANGE COUNTY REGISTER

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An Orange County Sheriff's Department crime scene investigator photographs the evidence at the scene of a 2011 police shooting in Anaheim. In recent years, the Orange County District Attorney's investigations of police shootings have become increasingly beset with delays. FILE: BRUCE CHAMBERS, STAFF PHOTOGRAPHER

Orange County District Attorney Tony Rackauckas, left, and Assistant District Attorney Dan Wagner presented their office's findings in March 2013 that Anaheim police Officer Nicholas Bennallack was not criminally culpable in the fatal shooting of Manuel Angel Diaz. The District Attorney's Office investigates most police shootings in the county from start to finish. H. LORREN AU JR., STAFF PHOTOGRAPHER

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The Orange County district attorney's investigations of police shootings have become increasingly beset with delays in recent years, leaving residents and the officers involved in the dark months longer than in other Southern California counties.

Prosecutors completed a similar number of investigations in 2009 and 2013, but the average time cases took to complete grew from six to 17 months, records obtained by the Orange County Register show.

Similar investigations in neighboring counties normally take less than a year, according to case records from prosecutors in Los Angeles, Riverside, San Bernardino and San Diego counties. In 2012, the most recent year for which comparable data was available for all counties, Orange County's investigations were the slowest.

In addition to reviewing shootings for criminal liability, District Attorney Tony Rackauckas' investigations carry extraordinary weight in Orange County's understanding of deadly force. Police rarely discuss their shootings, referring most questions to the D.A. reports produced at the conclusion of investigations.

“There is lots of discussion about how long it takes. Everybody is concerned about how long it takes,” former Huntington Beach Police Chief Ken Small said.

Civil rights activists, police union officials, criminologists and former district attorneys voiced similar concerns about the delays. Mothers of men shot by police said months without answers worsened their grief.

“There's tremendous anxiety in the community and there's no way to release that anxiety until the report is made,” said Amin David, an advocate for Latino residents. “It's just too damn long and things simmer and rumors fly.”

Rackauckas, who is up for re-election this year, declined to be interviewed for this story. He delegated the interviews to top officials, who emphasized that each inquiry is unique and the highest priority is reaching the correct finding.

“Because the integrity of law enforcement is so important, we make sure that any force is used is not excessive,” said Susan Kang Schroeder, Rackauckas' chief of staff. “The OCDA wants to conclude these, and all investigations, as soon as possible, without sacrificing quality and accuracy.”

In many counties, police agencies investigate their own shootings and then submit the case to prosecutors for legal review. In Orange County, Rackauckas' office is responsible for most cases from start to finish.

Samuel Walker, a nationally recognized expert and author on police force issues, was stunned to learn the length of Orange County investigations. Unlike other homicide cases, he said, there is usually no mystery.

“These are particular events where you need some resolution to what happens,” said Walker, a professor emeritus at the University of Nebraska at Omaha. “Unless they can offer some plausible argument, I can't see any reason for extreme delay.”

Rackauckas has worked in recent years to boost the transparency of police shootings investigations, rather than just announce a final conclusion. Also, he assigns top prosecutors to write the reports, and most have extensive courtroom duties as well. These factors appear to add to the delays.

Rackauckas, first elected district attorney in 1998, has never prosecuted an officer for an on-duty shooting but did file homicide charges against three Fullerton officers in the fatal beating of a homeless man. After a jury acquitted two of the officers in January, Rackauckas dropped charges against the third.

A MAN WITH A KNIFE

How the District Attorney's Office handled the shooting of Jason Nunez illustrates broader issues. In comparison with many other police shootings across Southern California, the sequence of events that led to Nunez's demise was clear-cut.

In November 2011, Nunez snapped during an evening argument with his sister, grabbed two kitchen knives and began chasing her down the street.

Garden Grove police Officer Omar Perez arrived at the scene and told Nunez to surrender. Instead, Nunez moved toward the officer, one knife still in hand.

Perez held his position and then fired one bullet into Nunez's chest, dropping him to the pavement. Paramedics were unable to revive Nunez. He was 31.

The shooting was one of hundreds in recent years where officers said they fired in self-defense. But this one presented investigators with more detail than usual. Multiple witnesses were present and the shooting was captured on video.

Investigators interviewed Perez within five hours of the shooting. Coroners finished an autopsy in two days. Toxicology and other forensic tests were done in weeks. No related lawsuits or criminal cases were pending.

Then, as this story neared publication, the District Attorney's Office cited the formatting of its report as one issue.

“We were still in the early stages of determining how much information to include in the letters and what the format would look like, so this created some delay,” Schroeder said.

REVISED FORMAT

One significant change since 2009 is the amount of information Rackauckas releases at the end of his investigations. In late 2010, prosecutors began producing more detailed reports about police shootings and their analyses of the law.

Rackauckas touted the change in format as an effort to “foster greater accountability and transparency in law enforcement and develop greater public confidence and understanding in the integrity of the process.” He said the actual investigative process would “remain the same.”

But greater transparency has come at a cost. Among 43 investigations completed before the change, the average took seven months from the date of the shooting. The average response since the change has been about 15 months.

The office's previous reports on police shootings contained minimal information: names, dates and a boilerplate legal conclusion. Most were only a few sentences long.

Now the reports are more detailed and often exceed five pages, and unlike district attorneys in Los Angeles, San Diego and Riverside, Rackauckas publishes them online.

The seven-page report about Nunez's death described Perez's statements after the shooting, witness accounts, video captured by a dashboard camera and autopsy findings. Without the report, few of these details would likely have reached the public without court action.

Rackauckas' reports are normally more detailed than ones produced by other Southern California prosecutors. Only reports by the San Bernardino District Attorney's Office routinely contain more information.

PRIORITIZING CASELOAD

Discussing the 13-month delay in the Nunez case, Orange County district attorney officials also noted that the case had fallen on the desk of veteran homicide prosecutor Steve McGreevy. His workload at the time included a dozen other cases and two murder trials.

Officials said delays in most cases aren't dependent on investigative factors like forensic tests. Instead, the amount of time can rely on office priorities for handling high-profile cases.

The elite group of prosecutors assigned to review police shootings also is responsible for homicide, gang and public corruption cases. While pushing to meet strict deadlines for these cases in court, other investigations collect dust.

Cmdr. Ron Seman of the District Attorney's Office estimated that actual investigations typically take about four months per shooting. The remainder of the office's response involves legal analysis and report writing by busy prosecutors. With fatal shootings, Rackauckas himself must approve the final report.

These priorities have received mixed reviews among police union officials and area chiefs.

Ron Cottingham, a past president of the Peace Officers Research Association of California, said the current length of investigations is unfair to officers.

“Your career is in the balance, and it is agonizing to sit there and wait for a decision,” he said. “A year is a bit too long.”

Small, the former Huntington Beach police chief, said, “I can't argue with them because I'm not sitting in their chair and making those kinds of decisions. I think police officers have the expectation that they're somehow special and therefore they should automatically go to the top of the pile every time. I think that's an unrealistic expectation. ...If I had to put it on a balance, a speedy investigation versus a thorough and complete investigation, thorough and complete wins every time.”

Rackauckas has never discussed the increasing length of police shooting investigations in public. When he requested more positions in September 2012 for the elite unit that investigates shootings, he cited additional staffing needs related to the unit's other cases.

Asked whether Rackauckas would be interested in more resources to speed up police shooting investigations, Schroeder replied: “We would love to have more resources for a lot of different things.”

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